In re: Darren M.

SECOND DIVISION

Date Filed: September 29, 2006

No. 1-05-1554

In re DARREN M., a Minor ) Appeal from the

) Circuit Court of

(The People of the State of ) Cook County.

Illinois, )

) No. 03 JD 06066

Petitioner-Appellee, )

)

v. ) Honorable

) Terrence V. Sharkey,

Darren M., ) Judge Presiding.

)

Respondent-Appellant). )

JUSTICE HALL delivered the opinion of the court:

The respondent, Darren M., was charged in a delinquency petition with attempted

criminal sexual assault, criminal sexual abuse and aggravated battery. Following a

hearing, the respondent was adjudicated a delinquent minor and sentenced to the

Department of Corrections, Juvenile Division, for a period of seven years or until his

twenty-first birthday, whichever occurred first.

The respondent appeals, raising the following issues: (1) whether his adjudication

and sentence are void because the respondent's father was never given notice of the

proceedings; (2) whether the circuit erred in denying the respondent's motion to strike

the juvenile sex offender evaluation recommendations; (3) whether the Frye standard

(Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)), governing the admission of

scientific evidence, should be replaced by the standard announced in Daubert v. Merrell

No. 1-05-1554

Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993);

and (4) whether the respondent's sentence is excessive.

The respondent does not challenge his adjudication as a delinquent minor.

However, because the respondent raises an excessive-sentence issue, we will set forth

the facts pertinent to that issue.

The victim, K.B. was 14 years old at the time of the incident. She met the 15-year-

old respondent while playing basketball. Later, they took a walk together. When

respondent asked K.B. if there was anything going on between them, K.B. told him no,

that she had a boyfriend. The respondent promised her jewelry and clothes or whatever

else she wanted, but K.B. told him she was not interested. When K.B. told the

respondent that she had go home, the respondent grabbed her. When K.B. tried to free

herself, the respondent told her to shut up and that he had a gun and would kill her if

she did not stop screaming. K.B. stopped screaming, whereupon the respondent

dragged her behind a Dumpster. When K.B. tried to escape, the respondent pulled her

shirt off and threw her against the Dumpster. When K.B. got up, the respondent pushed

her into a stairwell. K.B. fell backwards and sustained numerous scratches. The

respondent repeatedly told K.B. that he had a gun. He pulled down K.B.'s pants and

underwear and took his penis out of his pants. When K.B. tried to kick the respondent,

he threatened her with a rock. When the respondent put the rock down, K.B. threw it

away.

While K.B. was on her back, the respondent tried to open her legs. The respondent

was about a foot in front of her, facing her, and his penis was erect. K.B. continued to

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No. 1-05-1554

struggle while the respondent attempted to assault her. The respondent then seemed

to give up and struck K.B. in her left eye with his right fist, causing blood to gush from

her nose. The respondent told K.B. to put her "fucking" pants back on. He then took off

running. K.B. sought help from a passing motorist who drove her home.

Following the adjudication of delinquency, the trial court ordered a sex offender

evaluation and a social investigation. Following the completion of the sex offender

evaluation, the respondent moved to strike the evaluation recommendations. The

respondent maintained that the tests utilized were not valid predictors of sexual offense

recidivism and demonstrated no statistical reliability or predictive validity.

The respondent's sentencing hearing and the hearing on the motion to strike were

held on May 6, 2005. By agreement of the parties, the mitigation evidence was

presented first.

Bishop Larry Trotter is the International Presiding Bishop of the United Pentecostal

Churches of Christ and pastor of Sweet Holy Spirit Church, attended by the

respondent's family. Bishop Trotter had more contact with the respondent when he was

younger, but he is in contact with the respondent's family and sees him in passing. No

one has ever complained to him of the respondent's behavior. Bishop Trotter observed

that the respondent had some mental challenges and was slow to catch on to things,

but he had grown up to be a fine young man. Bishop Trotter had several letters from

other pastors and a church member asking for leniency and expressing a willingness to

help the respondent.

Pastor James Dukes is the pastor of the Liberation Christian Center and has known

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No. 1-05-1554

the respondent's family for eight years. As part of his ministry, Pastor Dukes is involved

in Brothers Hiring Brothers, providing mentoring and reentry programs for ex-offenders.

The program could provide services for the respondent and would work in conjunction

with the programs available through Bishop Trotter's church. The respondent had been

an active participant in the program since he was 12 years old.

Juanita Cannon, a probation officer, conducted the social investigation of the

respondent. The respondent had been in custody for a year prior to being released on

home confinement. During that time, there was no indication that the respondent had

been sexually inappropriate or violent. The respondent had fairly poor grades in school

and was suspended at least once for using profanity. The respondent was very

forthcoming about his use of drugs and alcohol. Ms. Cannon was unfamiliar with any of

the programs run by Bishop Trotter. While the programs referred to in the letters might

be worthwhile, they would not influence her recommendation. At the time she authored

her report, she made no recommendation because she was uncertain as to what

services the respondent would require. At the time of the sentencing hearing, she still

had no recommendation.

Christine Vitale is a juvenile probation officer, working in the juvenile sex offender

unit. She conducts sex offender evaluations for the court and makes treatment

evaluations. She has a master's degree in social work and a bachelor's degree in

science rehabilitation education from the University of Pennsylvania. She has been a

licensed clinical social worker since 1999. After questioning by both parties, the trial

court found Ms. Vitale qualified as an expert witness in juvenile sex offender

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No. 1-05-1554

evaluations.

Ms. Vitale conducted a clinical interview with the respondent. She had been

provided with the petition, police reports, clinical evaluations 1 and the victim's testimony.

The interview was conducted over a period of days. The respondent was alert,

cooperative and focused during the interview. At the completion of the interview, Ms.

Vitale prepared an evaluation report utilizing the "Juvenile Sex Offender Assessment

Protocol" or "J-SOAP-II."

Ms. Vitale explained that the J-SOAP-II is a risk assessment for juvenile sex

offenders to be used as a guide to aid the clinician in assessing for risk, both for sex

offending behavior and criminal behavior. The guide was not the sole basis for Ms.

Vitale's recommendation in this case; she used it as an aide in determining the risk of

recidivism. The guide is generally accepted in the clinical community and is considered

one of the best methods available. It is empirically guided, meaning that the risk factors

are found in the professional literature as well as in the research being done on juvenile

sex offenders. The assessments were helpful to Ms. Vitale in making her

recommendation.

1

The respondent had been evaluated for fitness prior to the delinquency hearing in this

case.

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No. 1-05-1554

After completing the interview with the respondent and collecting the collateral

information, Ms. Vitale proceeded to score the J-SOAP-II. The guide is divided into

sections that are scored between one and two depending on the information. The

respondent exhibited the following risk factors for recidivism: deviant sexual arousal and

the fact that his victim was a stranger. Ms. Vitale also considered the violent nature of

the attack on K.B. Other risk factors exhibited by the respondent were a history of

delinquency, substance use and a recent instance of aggressive behavior toward a

female teacher while detained at the detention center. The respondent also exhibited a

lack of empathy for the victim and denied responsibility for the attack. The respondent

blamed others and had difficulty in managing his anger. There was also evidence that

the respondent was sexually promiscuous; he admitted to having 20 sexual partners

and to having contracted gonorrhea.

In addition to the J-SOAP-II, in arriving at her recommendation, Ms. Vitale relied on

other factors such as her clinical interviews with the respondent and his family, the

victim's testimony and the police reports, as well as the risk factors she previously

identified. Ms. Vitale recommended that the respondent be sentenced to juvenile-sex-

offender-specific treatment in the Department of Corrections.

On cross-examination, Ms. Vitale acknowledged that the J-Soap-II manual makes

recommendations as to inpatient or outpatient treatment based on the scores. There

are no cutoff scores; the evaluator has to use clinical judgment. According to the

manual, the scores may be underestimates because there was only so much

information that could be gathered during the evaluation. Ms. Vitale further

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No. 1-05-1554

acknowledged using a rape scale guide even though she was unfamiliar with the book

from which the guide came.

Based on the multiple risk factors exhibited by the respondent, Ms. Vitale concluded

that he needed a highly structured and supervised setting where he could receive

intensive sex offender treatment. She acknowledged that other than the incident in this

case, there were no other instances of deviant sexual arousal and that most adolescent

offenders' victims are under the age of six. Ms. Vitale further acknowledged that the

recidivism rate for juvenile sex offenders is much less than other sex offenders, the

difference being receiving treatment. Such treatment could be done on an outpatient

basis. She was aware that the sex offender program was located in Kewanee, Illinois,

but she was unfamiliar with the program itself.

Ms. Vitale was unaware of whether the respondent's version of the events in this

case had any support in the record since she was only given the victim's testimony.

Even if the respondent had counseling and support from individuals who worked with

sex offenders available to him, she felt it was insufficient. Denial of the incident by the

respondent's family as well as people in his community was a detriment to the

respondent's ever coming out of denial. However, Ms. Vitale denied that the

respondent's refusal to accept responsibility was the primary basis for her

recommendation.

On redirect examination, Ms. Vitale explained that the respondent's mother blamed

the police for mishandling the case, accused the State of wrongdoing and considered

the case a "race thing."

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No. 1-05-1554

The trial court denied the motion to strike the J-SOAP-II. The court noted that, while

it would take into consideration the information offered by the State, it would determine

the weight to be given to that information. The court indicated that while it believed the

information to be beneficial, it was up to the court to decide whether to use the

information or not. In aggravation, the State presented a victim impact statement from

K.B.'s mother.

In closing argument, the State pointed out that the respondent had been enrolled in

the programs offered by the community prior to the offenses in this case. The

respondent also used marijuana while this case was pending, indicating that he was not

taking these proceedings seriously. Finally, the respondent had robbery and

possession of a stolen vehicle charges pending. In response, the respondent pointed

out his mother's acknowledgment that, due to a problematic pregnancy, she had made

the respondent's home life difficult, causing him to run away and to be become involved

in criminal activity. Given the community resources available and his lack of other

sexually deviant conduct, the respondent argued that probation with mandatory

treatment would be the appropriate disposition. The respondent denied committing the

offenses in this case, but requested a chance to make a change in his life.

In rendering its decision, the trial court stated that it was not giving much weight to

the fact that the respondent denied his guilt. After reiterating that it found that the

respondent had committed the offenses in this case beyond a reasonable doubt, the

court stated as follows:

"Weighing in the treatment, violent nature of this attack, the sexual nature of

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No. 1-05-1554

this attack, that there was no prior warning of an attack, and the fact that the

minor was really at the time of this alleged incident, I believe [,] out of control of

the family situation. Part of that maybe [sic] and moms are typical and [the

respondent's mother] is a typical mom. She wants to defend the kids at all costs,

but at some point Darren has to step up and accept responsible [sic] for his

actions. You can't take blame mother, because you had a bad pregnancy. And

part of the responsibility was you might have been giving him a hard time. He's a

young man and he knows the difference between right and wrong."

While the trial court was impressed with the appearance of Bishop Trotter and Pastor

Dukes on the respondent's behalf, it concluded as follows:

"But the fact is it concerns me that the minor might be out of control. And if I

were to give him probation and send him home, I'm not convinced that I would

sleep safely at home knowing I don't think I did everything that was really not only

in the interest of society, which is a balancing test I have to do. I have to weigh

society's issues and concerns and the minor's. What I have to do with the minor

in his well-being and what I think is in his best interest."

The trial court sentenced the respondent to the Department of Corrections for a

period of seven years or until his twenty-first birthday, whichever event occurred first.

The court explained that the juvenile court justice division had set up a treatment

program at Kewanee, monitored by Cook County probation officers. If the probation

officer determines that a minor has been helped by the program, the minor can be

transferred back to Cook County and receive outpatient services, monitored by the

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No. 1-05-1554

court. The court entered and continued a motion to vacate the Department of

Corrections sentence. If the respondent did well at Kewanee, he could be brought back

and receive outpatient services.

This timely appeal followed.

ANALYSIS

I. Jurisdiction

The respondent contends that the failure to serve his father with notice of the

juvenile proceedings in this case deprived the trial court of jurisdiction. The State

responds that the respondent has waived this issue by failing to raise it in the trial court.

The delinquency petition in this case named the respondent's

mother and father as respondents. The father's address was listed as unknown. At the

initial court appearance in this case, the respondent, his mother and his stepfather

appeared in court. After ascertaining the identify and correct address of the mother, the

following colloquy occurred:

"MS. LEUIN (assistant State's Attorney): What is the minor's biological father's

name?

THE MOTHER: Darren [M.].

MS. LEUIN: Do you know where Mr. [M.] lives?

THE MOTHER: I don't know the address, but I know where he lives.

MS. LEUIN: Does he see or talks to his son on a regular basis?

THE MOTHER: This is his father.

THE COURT: Does he pay child support?

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No. 1-05-1554

THE MOTHER: No.

THE COURT: No contact father."

"[A] minor and his or her parents have a constitutional right of due process to receive

adequate notice of a juvenile proceeding." In re C.R.H., 163 Ill. 2d 263, 269, 644

N.E.2d 1153 (1994). Unless a claim of inadequate service of notice can be deemed

waived, a circuit court's orders adjudicating a minor delinquent and sentencing the

minor to the Department of Corrections are void for lack of jurisdiction. C.R.H., 163 Ill.

2d at 272.

The respondent relies on C.R.H. In that case, the court found a due process

violation where neither the custodial mother nor the father was served with notice of the

proceedings. However, the court recognized that notice could be waived. C.R.H., 163

Ill. 2d at 270-71; see In re J.P.J., 109 Ill. 2d 129, 485 N.E.2d 848 (1985) (the

noncustodial parent's whereabouts were unknown and the custodial parent received

notice); In re J.W., 87 Ill. 2d 56, 429 N.E.2d 501 (1981) (permitting service by

publication where the father's whereabouts were unknown, and there was service on

the custodial mother); compare People v. R.S., 104 Ill. 2d 1, 470 N.E.2d 297 (1984) (the

noncustodial mother's address was known and she could have been served notice

without difficulty).

Recently, this court found the issue as to lack of notice to a noncustodial father

forfeited. In In re Ricardo A., 356 Ill. App. 3d 980, 827 N.E.2d 894 (2005), the minor

advised the trial court that he had been in contact with his noncustodial father the

previous year and could contact him at work. Nonetheless, the State failed to utilize

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No. 1-05-1554

that information to serve the father personally and, instead, served him by publication,

which was alleged to be defective. This court held that the notice issue was forfeited

because the minor, his mother and his attorney failed to object to the State's lack of

diligence in serving the father or to the service by publication. Ricardo A., 356 Ill. App.

3d at 988.

In the present case, the respondent points out that his mother knew where his father

lived though she did not know the address. Nonetheless, neither the respondent nor his

mother objected to the State's failure to serve his father. Therefore, the issue is

forfeited. See Ricardo A., 356 Ill. App. 3d at 988; but see In re K.C., 323 Ill. App. 3d

839, 846, 753 N.E.2d 314 (2001) (objection to failure to name and serve a necessary

party cannot be waived).

Even if the issue were not forfeited, we would still hold that the lack of notice to the

noncustodial father did not violate due process in this case. The respondent notes that

the legislature has attempted to fulfill the due process requirement of notice to parents

by setting forth precise procedures to be followed in delinquency cases. Section 5-525

of the Juvenile Court Act of 1987 (705 ILCS 405/5-525 (West 2002)) (the Act) requires

that summons with a copy of the petition be directed to the minor's parent, guardian or

legal custodian and to each person named as a respondent in the petition. 705 ILCS

405/5-525(1)(a) (West 2002). However, section 5-525 further provides that the

summons need not be directed "to a parent who does not reside with the minor, does

not make regular child support payments *** and has not communicated with the minor

on a regular basis." 705 ILCS 405/5-525(1)(a)(ii) (West 2002).

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Again, we find Ricardo A. instructive. While finding the notice issue forfeit, this court

further concluded that the minor's due process rights were not violated. The court noted

that the State had served the mother, who had sole custody, and she was present for all

of the proceedings. The court further noted that there was no evidence that the minor

and his father had a significant relationship warranting service on the father. The minor

had been in contact with his father but did not know where his father lived, and there

was no evidence that they maintained regular contact. Also, there was no evidence as

to what assistance or protection the minor's father could have provided him had he been

present during the proceedings. The court observed as follows:

"'Unless a minor shows some significant relationship with a noncustodial

parent that is affected by the adjudication, he cannot stand silent at a hearing

where he is represented by counsel and where his custodial parent is present

and then later be heard to complain about lack of notice.' [Citation.] Respondent

here stood silent and failed to demonstrate a significant relationship with his

father. As such, we would find, even absent forfeiture of this issue, that he was

not denied due process by the State's failure to notify his father of the

proceedings. Accordingly, we conclude that the trial court did not lack jurisdiction

over this matter and its adjudication need not be vacated as void." Ricardo A.,

356 Ill. App. 3d at 989, quoting In re S.W.C., 110 Ill. App. 3d 695, 698-99, 442

N.E.2d 961 (1982).

In the present case, the respondent points out that he informed Ms. Vitale that he

had met his father "lots of times" and last had contact with him three years before.

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No. 1-05-1554

Since the statement was made more than a year and a half after his initial court

appearance, the respondent argues that he had contact with his father within a year and

half of his initial court date. The respondent further argues that since his commitment to

the Department of Corrections was due in part to the perception that his mother was

unable to control him, he was adversely affected by the failure of the State to serve his

father, thus preventing a determination as to what kind of assistance his father could

have provided him.

The record fails to establish that the respondent had regular contact with or a

significant relationship with his noncustodial father that would require notice to him. In

that same interview with Ms. Vitale, when questioned about his relationship with his

father, the respondent replied, "'He's a crack-head, he ain't in my life.'" The respondent

further asserted, "'I don't care, don't got no feeling'" for his father. The respondent had

met his father "'lots of times' and 'didn't like the way he treated me.'" His father would

"'buy me stuff and take it back if I didn't listen. He didn't like buying me stuff and didn't

keep promises.'" The respondent reported that his father had been arrested for

"'stealing something or other.'"

In the present case, the noncustodial father paid no child support. The respondent's

custodial parent was served and appeared in court. The respondent's own words belie

any type of relationship with his father, let alone a regular or significant one. The

description provided by the respondent does not suggest a parent whose involvement in

this case was desired either by the respondent or could have provided the respondent

with any assistance of a positive nature. Even if the respondent had seen his father

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No. 1-05-1554

within a year and half of his initial court date, that does not establish "regular contact."

The respondent cites a number of cases, all of which are distinguishable. See In re

Willie W., 355 Ill. App. 3d 297, 838 N.E.2d 5 (2005) (the lack of notice to custodial father

fatal to jurisdiction where the mother supplied the father's telephone number, the father

paid child support, and the probation department was able to locate the father's

address); In re Miracle C., 344 Ill. App. 3d 1046, 801 N.E.2d 1177 (2003) (the record

indicated that the whereabouts of the noncustodial father were known to the State at the

time of the adjudication hearing); In re T.B., 65 Ill. App. 3d 903, 382 N.E.2d 1292 (1978)

(where mother left the jurisdiction, the State was required to make inquiries of the

mother's former neighbors and the respondent-father, if he were available, to fulfill the

diligent-inquiry requirement).

Finally, a minor may waive any question regarding the State's diligence in attempting

to locate and serve a noncustodial parent. In re Tyrone W., 326 Ill. App. 3d 1047, 1050,

762 N.E.2d 1159 (2002). The respondent's mother stated that she knew where the

father lived, but she failed to supply that information to the State. Moreover, the mother

denied that the father had regular contact with the respondent and, apparently referring

to the stepfather, indicated that he was the respondent's "father." The respondent, who

was present, did not contradict his mother's statements. Moreover, the information the

respondent supplied to Ms. Vitale regarding his relationship with his natural father was

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No. 1-05-1554

given after the adjudication. 2

In sum, we determine that the respondent forfeited the notice to the noncustodial

father issue. However, even in the absence of forfeiture, the respondent was not

denied due process by the State's failure to notify the noncustodial father of these

proceedings. We conclude that the trial court did not lack jurisdiction over this matter,

and the respondent's adjudication and sentence need not be vacated as void.

II. Motion to Strike

The respondent contends that the trial court erred when it refused to strike the

juvenile sex offender evaluation recommendations. The respondent argues that the J-

SOAP-II has not been validated by the scientific community and is unreliable as an

assessment tool. In the alternative, the respondent maintains that the trial court should

2

We note with displeasure that the respondent does not attempt to distinguish

Ricardo A., a recent case from this district, or to acknowledge its existence, even after it

was cited by the State.

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No. 1-05-1554

have conducted a hearing pursuant to Frye to determine the acceptability of the J-

SOAP-II.

A. Standard of Review

A dual standard of review applies with respect to a trial court's admission of expert

scientific evidence. In re Commitment of Simons, 213 Ill. 2d 523, 530, 821 N.E.2d 1184

(2004). "The decision as to whether an expert scientific witness is qualified to testify in

a subject area, and whether the proffered testimony is relevant in a particular case,

remains in the sound discretion of the trial court. The trial court's Frye analysis,

however, is now subject to de novo review. In conducting such de novo review, the

reviewing court may consider not only the trial court record but also, where appropriate,

sources outside the record, including legal and scientific articles, as well as court

opinions from other jurisdictions." Simons, 213 Ill. 2d at 530-31. 3

B. Discussion

Section 5-705 of the Act requires the trial court to determine the proper disposition

based upon the best interests of the minor. 705 ILCS 405/5-705(1) (West 2004). "All

evidence helpful in determining these questions, including oral and written reports, may

be admitted and may be relied upon to the extent of its probative value, even though not

competent for the purposes of trial." 705 ILCS 405/5-705(1) (West 2004). The court is

3

The respondent cites In re K.D., No. 04-1165 (October 26, 2005), an unpublished opinion

from the Iowa Court of Appeals. While the Iowa appellate rules allow unpublished opinions to be

cited, they are not controlling authority. See Iowa Ct. R. 6.14(5). Under our own rules of

appellate practice, K.D. may neither be cited nor relied upon as authority. See 166 Ill. 2d R.

23(e).

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No. 1-05-1554

to advise the parties of the factual contents and conclusions of the reports considered

by the court and to afford the parties the opportunity to controvert them. 705 ILCS

405/5-705(2) (West 2004).

"In Illinois, expert testimony is subject to admissibility under the standard first

articulated in Frye." People v. Vercolio, 363 Ill. App. 3d 232, 236, 843 N.E.2d 417

(2006). "Under the Frye standard, scientific evidence is admissible only if the

methodology or scientific principle upon which the expert's opinion is based has gained

general acceptance in that particular scientific field." Vercolio, 363 Ill. App. 3d at 236.

General acceptance does not mean universal acceptance but that the underlying

methodology used to generate the expert's opinion is reasonably relied on by the

experts in the field. Vercolio, 363 Ill. App. 3d at 236.

Prior to Simons, the appellate courts had taken one of two approaches in dealing

with actuarial risk assessments. See People v. Taylor, 335 Ill. App. 3d 965, 782 N.E.2d

920 (2002) (actuarial risk assessment was a scientific methodology which the State was

required to prove had gained acceptance in the relevant scientific community); but see

In re Detention of Erbe, 344 Ill. App. 3d 350, 800 N.E.2d 137 (2003) (actuarial risk

assessment was not a novel scientific method subject to Frye and even if it was, it was

generally accepted). In Simons, our supreme court agreed with the conclusion in Erbe

and held that, whether or not an actuarial risk assessment is subject to Frye, there was

no question that it is generally accepted by professionals who assess sexually violent

offenders and therefore is perfectly admissible in a court of law. Simons, 213 Ill. 2d at

535. As the court noted, "experts in at least 19 other states rely upon actuarial risk

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assessment in forming their opinions on sex offenders' risks of recidivism." Simons,

213 Ill. 2d at 535.

The State argues that the J-SOAP-II is an actuarial scale and therefore not subject to

Frye. However, according to the 2003 J-

SOAP-II manual, the J-SOAP-II "is a checklist"

to aid in the review of risk factors identified in

the professional literature as associated with

sexual and criminal offending. The manual

further provides:

"Although our goal is to provide the user with probabilistic estimates of risk for

sexual recidivism, we still do not have adequate data on a sufficiently large

number of juvenile sexual reoffenders to provide such estimates. Thus, at the

present time, J-SOAP-II is not an actuarial scale. J-SOAP is an empirically

informed guide for the systematic review and assessment of a uniform set of

items that may reflect increased risk to reoffend." (Emphasis in original.) R.

Prentky & S. Righthand, Juvenile Sex Offender Assessement Protocol-II (J-

SOAP-II) Manual, at 8 (2003).

Nonetheless, even if the trial court erred in failing to hold a Frye hearing, any error

was harmless. See In re Commitment of Stevens, 345 Ill. App. 3d 1050, 1060-61, 803

N.E.2d 1050 (2004) (any error in failing to conduct a Frye hearing harmless where the

evidence established that the actuarial assessment-risk instruments were generally

accepted by professionals who assess sex offenders). In Stevens, the court noted that

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"'[v]igorous cross-examination, presentation of contrary evidence, and careful instruction

on the burden of proof are the traditional and appropriate means of attacking shaky but

admissible evidence.'" Stevens, 345 Ill. App. 3d at 1061, quoting Daubert, 509 U.S. at

596, 125 L. Ed. 2d at 484, 113 S. Ct. at 2798.

According to Ms. Vitale, her methods of evaluation, which included but were not

limited to the J-SOAP-II, were generally accepted in the community of trained clinicians,

including psychologists and psychiatrists, who evaluate juvenile sex offenders. The

respondent conducted a vigorous cross-examination of Ms. Vitale in which she

acknowledged that the J-SOAP II had not been validated yet.

Finally, even if the respondent had prevailed at a Frye hearing and barred the

admission of the J-SOAP-II, we are satisfied that the result in this case would have

been the same.

See In re Commitment of Field, 349 Ill. App. 3d 830, 813 N.E.2d 319 (2004) (erroneous

admission of actuarial instruments was harmless error where evidence unrelated to

those instruments supported the opinions of the State's experts).

In arriving at her recommendation for the respondent, Ms. Vitale used methods

including conducting a clinical interview, checking collateral information and using

empirical guides that are standard in the clinical community. In determining that the

Department of Corrections was the least restrictive environment to provide the

respondent with sex-offense specific treatment, Ms. Vitale identified the following risk

factors in her report: "the violent nature of the offense, the victim was a stranger, the

minor's extensive denial, resistance to treatment, no evidence of remorse or empathy,

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No. 1-05-1554

his history of nonsexual delinquency, substance use, history of running away, and

recent aggression towards a female teacher."

Ms. Vitale testified that these risk factors have been validated by research as

showing a propensity to reoffend. She stressed that the J-SOAP-II and the other

nonvalidated scales were utilized only as guides. See In re Committment of Lourash,

347 Ill. App. 3d 680, 688, 807 N.E.2d 1269 (2004) (reversal not required where actuarial

instruments were not crucial to the expert's conclusion).

We conclude that the J-SOAP-II was not crucial to Ms. Vitale's recommendation

regarding the disposition for the respondent and that the recommended disposition was

supported by the other evidence in this case. Therefore, any error in the trial court's

denial of the respondent's motion to strike was harmless.

The respondent then argues that he should not receive a harsher sentence because

he denied committing the offense. The respondent correctly asserts that the imposition

of a penalty based upon a defendant's refusal to admit guilt is violative of due process.

People v. Carlson, 293 Ill. App. 3d 984, 990, 691 N.E.2d 1156 (1997) (remanded on

other grounds). "[I]n determining whether a sentence was improperly imposed, the

reviewing court should not focus on a few words or statements of the trial court; it

should, rather, consider the complete record in its entirety." Carlson, 293 Ill. App. 3d at

990.

There is no question that the respondent's continual denial that he committed the

offenses in this case was a factor in Ms. Vitale's recommendation that he be sentenced

to the Department of Corrections. However, as noted above, other risk factors

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contributed to Ms. Vitale's recommendation in this case. Moreover, the trial court

specifically recognized the respondent's right to persist in his claim of innocence for

purposes of appeal and noted that it was not giving much weight to the fact that the

respondent continued to deny his guilt. In sentencing the respondent to the Department

of Corrections, the trial court noted the circumstances of the attack and that it believed

that the respondent could not be controlled by his family.

We conclude that the respondent's sentence to the Department of Corrections was

not based solely on his denial of guilt of the offenses in this case.

As an alternative argument, the respondent urges this court to replace the Frye

standard with the standard announced in Daubert. We note, as does the respondent,

that Frye is currently the standard in Illinois. See Simons, 213 Ill. 2d at 529 (in Illinois,

the Frye standard governs the admission of expert testimony). This court is without

authority to alter that standard. See Mekertichian v. Mercedes-Benz U.S.A., L.L.C., 347

Ill. App. 3d 828, 836, 807 N.E.2d 1165 (2004) ("After our supreme court has declared

the law with respect to an issue, this court must follow that law, as only the supreme

court has authority to overrule or modify its own decisions").

III. Excessive Sentence

A. Standard of Review

A court's dispositional order will not be overturned on appeal unless it is against the

manifest weight of the evidence. In re R.D.M., 313 Ill. App. 3d 989, 992, 731 N.E.2d

421 (2000). An order is against the manifest weight of the evidence if the opposite

result is clearly apparent. See In re V.O., 287 Ill. App. 3d 1055, 1058, 679 N.E.2d 1241

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(1997).

B. Discussion

"When determining the appropriate disposition, the circuit court may choose as it

sees fit, among the various alternatives, and need not defer to any particular

recommendation." In re J.C., 260 Ill. App. 3d 872, 884, 632 N.E.2d 127 (1994).

"However, because delinquency proceedings are protective rather than punitive in

nature, '[c]ommitment is to be used only when less severe placement alternatives would

not be in the best interests of the minor and the public.'" J.C., 260 Ill. App. 3d at 884,

quoting In re B.S., 192 Ill. App. 3d 886, 891, 549 N.E.2d 695 (1989).

The respondent contends that the evidence failed to establish that the Department of

Corrections was the least restrictive placement for him. He argues that Ms. Vitale's

determination, that he required inpatient treatment in the Department of Corrections,

was based on faulty risk assessment tools. However, we have already rejected the

respondent's argument on that point.

In determining the disposition in this case, the trial court

cited the violent and sexual nature of the attack on the victim and the fact that the

respondent was beyond the control of his family. Weighing the needs of both the

respondent and society, the court determined that probation was not an appropriate

sentence.

In V.O., the reviewing court found that the minor's commitment to the Department of

Corrections was not against the manifest weight of the evidence where parental efforts

to help the minor failed, the social history recommended the commitment, and the minor

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had committed arson, a serious offense. The reviewing court also found that the trial

court properly considered that the minor's commitment was necessary for the protection

of the public. V.O., 287 Ill. App. 3d at 1058; see J.C., 260 Ill. App. 3d at 884-85 (the

minor's commitment to the Department of Corrections was a valid exercise of the court's

discretion where the minor was beyond the control of his parents, and the Department

offered counseling and therapy programs to provide the guidance he needed).

The respondent further argues that his sentence was substantially more severe than

sentences imposed for more serious crimes. The respondent maintains that he is not

making a proportionate penalties argument but merely pointing out that he received a

harsher sentence for attempted criminal sexual assault than other juvenile offenders

who actually committed the offense, some of whom were given probation.

We have reviewed the cases cited by the respondent. Those cases are

distinguishable from the present case, in the lack of violence in the commission of the

offense and/or the minor's lack of a criminal history. None of those cases support a

sentence of probation in this case, given the violence of the attack on K.B., the

respondent's prior criminal history and his need for supervised treatment.

As to the argument that the respondent received more time than an individual

convicted of the substantive offense, we note that the length of a sentence for the

inchoate crime and the substantive offense can overlap. Section 8-4(c) of the Criminal

Code of 1961 provides that "[a] person convicted of an attempt may be fined or

imprisoned or both not to exceed the maximum provided for the offense attempted."

720 ILCS 5/8-4(c) (West 2002). Thus, an individual with no prior criminal record and

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who was convicted of criminal sexual assault where the victim was not otherwise injured

could receive the minium sentence. However, an individual with a criminal history and

who inflicted injuries on the victim in attempting to commit criminal sexual assault could

receive a longer sentence.

Moreover, the reference to seven years in the Department of Corrections

commitment order is deceptive. As the respondent acknowledges, his sentence

translates to a 4-year sentence since he will be 21 years old in 2009. Attempted

criminal sexual assault is punishable as a Class 2 felony for which the sentencing range

is 3 to 7 years. Therefore, the respondent's four-year sentence was only one year more

than the minimum term of years he could have received as an adult.

Finally, at the sentencing hearing, the trial court stated that the Department of

Corrections sentence was stayed. After finding that the minor required incarceration in

DOC, the court stated as follows:

"Now, this may catch everyone by surprise, but it's not catching me by

surprise. Motion to vacate the DOC order will be entered and continued. The

case is going to be transferred to Calendar 50 so that they can monitor this

particular case before he goes down to Kewanee. And once he's down at

Kewanee, they will continue to monitor him. If he does well down at Kewanee,

he can then be brought back. They'll vacate the Department of Corrections and

he'll receive outpatient treatment services as a sex offender. That is going to be

my order. I don't know whether it's objected to by either party or not, but that's

my intent. So, the motion to vacate the Department of Corrections order is

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entered and continued." 4

Although at the time the court did not believe that a Department of Corrections

commitment order was necessary, it acknowledged that it had not yet had a case

proceed in this manner. However, a commitment order was entered on May 16, 2005.

Nonetheless, assuming the minor responds to treatment, he will not remain in DOC as

long as the commitment order might indicate.

Given the respondent's background, the circumstances of the offense in this case

and his need for treatment, the trial court's sentencing order was not against the

manifest weight of the evidence.

For all of the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

HOFFMAN and SOUTH, JJ., concur.

4

The stay order is reflected in the clerk's minute order.

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